Exhibit 10.1.8
EIGHTH AMENDMENT TO
SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
AND SECOND AMENDMENT TO NOTE PARTICIPATION AGREEMENTS
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THIS EIGHTH AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND
SECURITY AGREEMENT AND SECOND AMENDMENT TO NOTE PARTICIPATION AGREEMENTS (this
"Agreement") is made as of the 21st day of September, 2001, by and among
AAi.FOSTERGRANT, INC. (formerly known as Accessories Associates,
Inc.), a corporation organized and existing under the laws of the State of Rhode
Island, successor in interest to ▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P., F.G.G. Investments,
Inc., The ▇▇▇▇▇▇▇ Company, ▇▇▇▇▇▇▇ Holdings, Inc., ▇▇▇▇▇▇▇ General, Inc., ▇▇▇▇▇▇
▇▇▇▇▇ Holdings, Inc., and O-Ray Holdings, Inc. (the "Borrower");
FANTASMA, LLC, a limited liability company organized under the laws of
the State of Delaware ("Fantasma") (Fantasma together with the Borrower, the
"Obligors");
WESTON PRESIDIO CAPITAL II, L.P., a limited partnership organized and
existing under the laws of the State of Delaware, BANCBOSTON VENTURES, INC., a
corporation organized and existing under the laws of the State of Delaware, ST.
▇▇▇▇ VENTURE CAPITAL V, LLC, a limited liability company organized and existing
under the laws of the state of Delaware, NATIONAL CITY CAPITAL CORPORATION, a
corporation organized and existing under the laws of the State of Delaware,
▇▇▇▇▇▇ CAPITAL, L.P., a limited partnership organized and existing under the
laws of the State of Delaware (the "SNR Participants").
BANK OF AMERICA, N.A., a national banking association ("Bank of
America"), formerly NationsBank, N.A., and each other financial institution
which is party to the Financing Agreement (as that term is defined below) from
time to time (collectively, the "Lenders" and individually, a "Lender"); and
BANK OF AMERICA, N.A., a national banking association (the "Agent"),
formerly NationsBank, N.A., in its capacity as both collateral and
administrative agent for each of the Lenders.
RECITALS
A. The Obligors, the Lenders and the Agent entered into a Second
Amended and Restated Financing and Security Agreement dated July 21, 1998 (as
amended by that certain First Amendment to Second Amended and Restated Financing
and Security Agreement dated as of May 7, 1999, Second Amendment to Second
Amended and Restated Financing and Security Agreement dated as of March 24,
2000, Third Amendment to Second Amended and Restated Financing and Security
Agreement dated as of June 12, 2000 (the "Third Amendment"), Fourth Amendment to
Second Amended and Restated Financing and Security Agreement dated as of
August 14, 2000 (the "Fourth Amendment"), Fifth Amendment to Second Amended and
Restated Financing and Security Agreement and First Amendment to Note
Participation Agreements dated as of March 26, 2001, Sixth Amendment to Second
Amended and Restated Financing and Security Agreement dated as of May 14, 2001,
Seventh Amendment to Second Amended and Restated Financing and Security
Agreement dated as of August 13, 2001 and as further amended, restated,
modified, substituted, extended, and renewed from time to time, the "Financing
Agreement").
B. The Borrower, the SNR Lender and each SNR Participant has entered
into a Note Participation Agreement, each dated as of August 12, 2000 (as
amended by the Fifth Amendment to Second Amended and Restated Financing and
Security Agreement and First Amendment to Note Participation Agreements dated as
of March 26, 2001 and as further amended, restated, modified, substituted,
extended, and renewed from time to time, the "SNR Participation Agreements").
C. Under and subject to the provisions of the Financing Agreement,
the SNR Lender (as defined in the Financing Agreement) agreed to make a loan to
the Borrower (the "SNR Loan") in a principal amount of $7,097,875. Pursuant to
SNR Participation Agreements, the SNR Participants committed to purchase (upon
the terms and conditions contained therein) from the SNR Lender an undivided
participation interest in the SNR Loan made by the SNR Lender under the
Financing Agreement.
D. The Obligors have requested that the Agent and Lenders provide an
over-advance in the amount of $5,000,000 and amend certain other provisions of
the Financing Agreement.
E. The Agent and Lenders are willing to agree to the Obligors'
request on the condition, among others, that this Agreement be executed.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, receipt of which is hereby acknowledged, the
Obligors, the Agent and the Lenders agree as follows:
1. The Obligors, the Agent and the Lenders agree that the Recitals
above are a part of this Agreement. Unless otherwise expressly defined in this
Agreement, terms defined in the Financing Agreement shall have the same meaning
under this Agreement.
2. Each of the Borrower and Fantasma represents and warrants to the
Lenders and Agent as follows:
(a) The Borrower is a corporation duly organized, and validly
existing and in good standing under the laws of the state in which it was
organized and is duly qualified to do business as a foreign corporation in good
standing in every other state wherein the conduct of its business or the
ownership of its property requires such qualification.
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(b) Fantasma is a limited liability company duly organized,
validly existing and in good standing under the laws of the state in which it
was organized and is duly qualified to do business as a foreign limited
partnership in every other state wherein the conduct of its business or the
ownership of its property requires such qualification.
(c) Each of the Borrower and Fantasma has the power and
authority to execute and deliver this Agreement and perform its obligations
hereunder and has taken all necessary and appropriate corporate, partnership or
limited liability company action, as applicable, to authorize the execution,
delivery and performance of this Agreement.
(d) The Financing Agreement, as amended by this Agreement, and
each of the other Financing Documents remains in full force and effect, and each
constitutes the valid and legally binding obligation of the Borrower and
Fantasma, enforceable in accordance with its terms.
(e) The obligations and undertakings of North American Philips
Corporation ("NAPC") pursuant to Section 17.3 of that certain Lease and Option
to Purchase made as of April 19, 1993 between NAPC and Borrower's predecessor,
Accessories Associates, Inc., remain in full force and effect in accordance with
their terms and benefit Borrower.
(f) All of the Borrower's and Fantasma's representations and
warranties contained in the Financing Agreement and the other Financing
Documents are true and correct on and as of the date of the Borrower's and
Fantasma's execution of this Agreement.
(g) After giving effect to this Agreement, no Event of Default
and no event which, with notice, lapse of time or both would constitute an Event
of Default, has occurred and is continuing under the Financing Agreement or the
other Financing Documents which has not been waived in writing by the Lenders
and Agent.
3. Section 1.1 of the Financing Agreement (Certain Defined Terms) is
hereby amended by adding the following definitions:
"Eighth Amendment" means that certain Eighth Amendment to Second
Amended and Restated Financing and Security Agreement and Second Amendment
to Note Participation Agreements dated as of September 21, 2001 by and
among the Borrower, Fantasma, the Agent, the SNR Participants and the
Lenders.
"Non-Signing SNR Participant" means any SNR Participant who as of the
relevant date of determination has not entered into the Eighth Amendment.
"Supplemental Security Agreement" means that certain Supplemental
Security Agreement dated September 21, 2001 among the Obligors and the
Agent, as amended, restated, supplemented or otherwise modified in writing
at any time and from time to time."
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4. The definition of "Security Documents" contained in Section 1.1
of the Financing Agreement (Certain Defined Terms) is hereby amended by adding
the following at the end of such definition:
"and the Mortgage and the Supplemental Security Agreement."
5. The table in Section 2.1.1 of the Financing Agreement is hereby
amended to read as follows:
Revolving Credit Revolving Credit
Lender Committed Amount Pro Rata Share
------ ---------------- ----------------
Bank of America $18,461,560.00 46.1539%
LaSalle $12,307,680.00 30.7692%
PNC $ 9,230,760.00 23.0769%
Total Revolving Credit
Committed Amount $ 40,000,000 100%
6.
(a) Section 2.1.3 of the Financing Agreement is hereby amended
by deleting the period at the end of clause (c) of such Section and adding the
following:
; PLUS (d) from September 21, 2001 through and including December 31,
2001, $3,500,000 plus the following amounts set forth next to each of the
SNR Participants whose names are set forth below upon the execution of the
Eighth Amendment by each such SNR Participant set forth below:
BancBoston Ventures, Inc. $285,000
St. ▇▇▇▇ Venture Capital V, LLC $570,000
National City Capital Corporation $285,000
▇▇▇▇▇▇ Capital, L.P. $360,000.
(b) Section 2.6.6 of the Financing Agreement is hereby amended
by adding after the words "Borrowing Base" the following:
"(calculated without giving effect to any amount under clause (d)
of Section 2.1.3)"
7. Section 7.2.5(a) of the Financing Agreement is hereby amended in
its entirety as follows:
(a) (i) Except to the extent clause (ii) of this Section 7.2.5(a)
shall apply with respect to the interest of a Non-Signing SNR
Participant (in which
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case this clause (i) shall not apply with respect to such interest),
any proceeds of sale or other disposition of the Collateral will be
applied by the Agent to the payment first of any and all Agent's
Obligations, then to any and all Enforcement Costs, and thereafter
proceeds from the Collateral shall be applied first to the Obligations
with respect to the Revolving Credit Facility, second to Obligations
other than those with respect to the Senior Note Redemption
Subfacility, then to any Obligations with respect to the Senior Note
Redemption Subfacility. If the sale or other disposition (by
foreclosure, liquidation or otherwise) of the Collateral fails to
fully satisfy the Obligations, the Borrower shall remain liable to the
Agent and the SNR Lenders for any deficiency.
(ii) With respect to any interest of a Non-Signing SNR
Participant, such interest shall be determined according to this
clause (ii). Any proceeds of sale or other disposition of the
Collateral will be applied by the Agent to the payment first of any
and all Agent's Obligations, then to any and all Enforcement Costs,
and thereafter (i) proceeds from the Collateral (other than the
Mortgage) shall be applied first to the Obligations with respect to
the Revolving Credit Facility, second to Obligations other than those
with respect to the Senior Note Redemption Subfacility, then to any
Obligations with respect to the Senior Note Redemption Subfacility,
and (ii) proceeds from the Mortgage shall be applied first to the
Obligations with respect to the Senior Note Redemption Subfacility to
the extent of the interest of each Non-Signing SNR Participant and
then to any other Obligations. If the sale or other disposition (by
foreclosure, liquidation or otherwise) of the Collateral fails to
fully satisfy the Obligations, the Borrower shall remain liable to the
Agent and the SNR Lenders for any deficiency.
8. Clauses (ii), (iii), (iv) and (v) of Section 7.2.5(b) of the
Financing Agreement are hereby amended in their entirety as follows:
"(ii) the Agent and the Lenders may take any action under this
Agreement, under the Financing Agreement, under the Financing
Documents, under applicable Laws (including, without limitation,
those actions for which the consent of all Lenders is required
under Section 9.2.2 (Circumstances Where Consent of all Lenders
is Required) of the Financing Agreement) or otherwise with
respect to the Obligations and/or the Collateral (other than the
Mortgage (but solely to the extent of the interest of any
Non-Signing SNR Participant) and other than to modify the terms
of, or to release the Obligors with respect to, the SNR Loan
Obligations as provided under the Third Amendment) without the
further agreement or consent of the holder of the SNR Loan or any
interest therein (including, without limitation, the SNR
Participant),
(iii) all Liens (other than the Lien of the Mortgage solely to
the extent of the interest of any Non-Signing SNR Participant)
securing the SNR Loan Obligations shall be and are hereby agreed
to be fully subordinate to the Liens of the Agent and the Lenders
in the Collateral (other than the Lien of the Mortgage solely to
the extent of the interest of any Non-Signing
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SNR Participant), and the holders of the SNR Loan or any interest
therein (including, without limitation, the SNR Participants)
shall have no rights of marshalling or otherwise in connection
with the disposition of the Collateral,
(iv) no proceeds of sale or other disposition of the Collateral
(other than the Lien of the Mortgage solely to the extent of the
interest of any Non-Signing SNR Participant) shall be applied to
any SNR Loan, and
(v) the Agent, in the exercise of its sole and absolute
discretion may at any time release, terminate, fail to perfect or
otherwise deal with or fail to deal with the Collateral (other
than the Lien of the Mortgage solely to the extent of the
interest of any Non-Signing SNR Participant) as long as such
action is not taken by the Agent in bad faith or by willful
misconduct, all as if the SNR Loan did not exist, the holders of
the SNR Loan and of any interest therein (including, without
limitation, the SNR Participants) waiving any claim to the
contrary."
9. The following is hereby added as a new Section 7.1.13:
7.1.13 Availability on December 31, 2001.
As of the close of business of the Borrower on December 31, 2001, the
Borrowing Base (calculated without giving effect to any amount under clause
(d) of Section 2.1.3) shall not exceed the Obligations (calculated without
giving effect to any outstanding amount under the SNR Loan) then
outstanding by $2,000,000 or more, with all accounts payable as of such
date being current or within normal trade terms.
10. The SNR Participants (other than a Non-Signing SNR Participant),
the SNR Lender and the Borrower agree as follows:
(A) the definition of "SNR Purchase Event" contained in Article I of
the SNR Participation Agreements (as such term is defined in the Financing
Agreement) is hereby amended by adding the following at the end of clause (vii)
of paragraph (a) of such definition:
"; or (viii) arising under Section 7.1.13 of the Financing
Agreement; or
(ix) with respect to the due and punctual payment in full (and
not merely the collectibility) of any Obligations, whether now
existing or hereafter created or arising, direct or indirect,
matured or unmatured, and whether absolute or contingent, joint,
several or joint and several and howsoever owned, held or
acquired."
(B) the phrases "(other than the Mortgage)" and "(other than the Lien
of the Mortgage)" are hereby deleted from Sections 4.6 and 4.7 of the SNR
Participation Agreements in each place in which they appear,
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(C) the phrase "(other than the Mortgage and other than to modify the
terms of, or to release the Obligors with respect to, the SNR Loan Obligations)"
contained in Section 4.7 of the SNR Participation Agreements is hereby amended
to read in its entirety as follows: "(other than to modify the terms of or to
release the Obligors with respect to the SNR Loan Obligations)", and
(D) to the amendment of Section 7.2.5 of the Financing Agreement
contained in the Eighth Amendment.
11. The Obligors hereby issue, ratify and confirm the
representations, warranties and covenants contained in the Financing Agreement,
as amended hereby. The Obligors agree that this Agreement is not intended to and
shall not cause a novation with respect to any or all of the Obligations.
12. The Obligors acknowledge and warrant that the Agent and the
Lenders have acted in good faith and have conducted in a commercially reasonable
manner their relationships with the Obligors in connection with this Agreement
and generally in connection with the Financing Agreement and the Obligations,
the Obligors hereby waiving and releasing any claims to the contrary.
13. The Obligors shall pay at the time this Agreement is executed and
delivered all fees, commissions, costs, charges, taxes and other expenses
incurred by the Agent, the Lenders and their respective counsel in connection
with this Agreement, including, but not limited to, reasonable fees and expenses
of counsel and all recording fees, taxes and charges.
14. As a condition of the Agent's and the Lenders' agreement to enter
into this Agreement, the Obligors hereby agree (i) to pay to the Agent for the
pro rata benefit of the Lenders an amendment fee equal to $200,000, which fee is
(x) fully earned at the time this Agreement is executed, (y) payable in cash, in
four equal installments of $50,000 due at the time this Agreement is executed,
October 1, November 1 and December 1, 2001, respectively and (z) non-refundable
upon payment, (ii) to execute and deliver the Supplemental Security Agreement
among the Obligor and the Agent in form and substance satisfactory to the Agent,
(iii) to deliver a recorded copy of the Mortgage together with a title insurance
policy in form and substance satisfactory to the Agent and issued by a title
insurance company satisfactory to the Agent on the Property (as defined in the
Mortgage), and (iv) to deliver an opinion of counsel in form and substance
acceptable to the Agent.
15. Each SNR Participant
(a) hereby issues, ratifies and confirms the representations,
warranties and covenants contained in their respective SNR Participation
Agreements, as amended hereby, and agrees that the respective SNR Participation
Agreements continue in full force and effect in accordance with their terms;
(b) hereby acknowledges, ratifies, confirms and agrees to the
terms and provisions of the Financing Agreement, as previously amended, restated
and modified and as amended hereby; and
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(c) with the exception of National City Capital Corporation,
hereby (i) covenants and agrees to maintain at all times until 90 days after the
SNR Termination Date, either cash, the unconditional and available right to call
for committed capital from its shareholders, limited partners or members, as the
case may be, in an amount not less than its respective Maximum Investment (the
"Committed Amount") (as such term is defined such SNR Participant's
Participation Agreement) and at the request of the Agent, from time to time, to
provide evidence of such, satisfactory to the Agent; and (ii) hereby agrees that
the failure of any SNR Participant to maintain a Committed Amount not less than
its Maximum Investment shall be a SNR Purchase Event.
16. In the event that the Borrower determines that as of the close of
business on December 31, 2001 no Event of Default exists, it shall so notify in
writing (such notification is herein called a "No Default Notice" which No
Default Notice shall be given by overnight delivery service) the Agent, the
Lenders and the SNR Participants no later than January 8, 2002. If the Borrower
sends a No Default Notice, unless the Agent or any Lender shall have sent a
notice (a "Response Notice") to the Borrower (such Response Notice to be given
by overnight delivery service) not later than January 16, 2002 (which Response
Notice the Borrower agrees to send to the SNR Participants) stating that an
Event of Default existed as of December 31, 2001, then on January 17, 2002, the
amendments to the Financing Agreement and the SNR Participation Agreements
contained in Sections 7, 8, 9 and 10 of the Eighth Amendment shall revert to the
language for such Sections that was in effect immediately prior to the entering
into of the Eighth Amendment. In the event that the Borrower does not send a No
Default Notice or the Agent or any Lender shall send a Response Notice, then the
amendments to the Financing Agreement and the SNR Participation Agreements
contained in Sections 7, 8, 9 and 10 of the Eighth Amendment shall continue to
be effective.
17. This Agreement is one of the Financing Documents. This Agreement
may be executed in any number of duplicate originals or counterparts, each of
such duplicate originals or counterparts shall be deemed to be an original and
taken together shall constitute but one and the same instrument. The parties
agree that their respective signatures may be delivered by fax. Any party who
chooses to deliver its signature by fax agrees to provide a counterpart of this
Agreement with its inked signature promptly to each other party. Each SNR
Participant executing this Agreement agrees that this Agreement shall be binding
on such SNR Participant and the SNR Participation Agreement entered into by such
SNR Participant without regard as to whether any other SNR Participant has
executed this Agreement. Each SNR Participant executing this Agreement after the
date hereof agrees that its execution shall be deemed to be effective as of the
date hereof.
IN WITNESS WHEREOF, the Obligors, the Agent, the Lenders and the SNR
Participants have executed this Agreement under seal as of the date and year
first written above.
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Signature Page
Eighth Amendment to Second Amended and Restated
Financing and Security Agreement and
Second Amendment to Note Participation Agreements
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, the SNR Participants, BANK
OF AMERICA, N.A.(in its capacity as "Agent"), and BANK OF AMERICA, N.A. and the
other financial institutions which are parties to the Financing Agreement as
"Lenders"
AAi.FOSTERGRANT, INC. (formerly known as
Accessories, Associates, Inc.)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
FANTASMA, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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Signature Page
Eighth Amendment to Second Amended and Restated
Financing and Security Agreement and
Second Amendment to Note Participation Agreements
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, the SNR Participants, BANK
OF AMERICA, N.A.(in its capacity as "Agent"), and BANK OF AMERICA, N.A. and the
other financial institutions which are parties to the Financing Agreement as
"Lenders"
BANK OF AMERICA, N.A., Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
BANK OF AMERICA, N.A.
in its capacity as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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Signature Page
Eighth Amendment to Second Amended and Restated
Financing and Security Agreement and
Second Amendment to Note Participation Agreements
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, the SNR Participants, BANK
OF AMERICA, N.A.(in its capacity as "Agent"), and BANK OF AMERICA, N.A. and the
other financial institutions which are parties to the Financing Agreement as
"Lenders"
LASALLE BUSINESS CREDIT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
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Signature Page
Eighth Amendment to Second Amended and Restated
Financing and Security Agreement and
Second Amendment to Note Participation Agreements
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, the SNR Participants, BANK
OF AMERICA, N.A.(in its capacity as "Agent"), and BANK OF AMERICA, N.A. and the
other financial institutions which are parties to the Financing Agreement as
"Lenders"
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (SEAL)
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
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Signature Page
Eighth Amendment to Second Amended and Restated
Financing and Security Agreement and
Second Amendment to Note Participation Agreements
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, the SNR Participants, BANK
OF AMERICA, N.A.(in its capacity as "Agent"), and BANK OF AMERICA, N.A. and the
other financial institutions which are parties to the Financing Agreement as
"Lenders"
WESTON PRESIDIO CAPITAL II, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Partner
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Signature Page
Eighth Amendment to Second Amended and Restated
Financing and Security Agreement and
Second Amendment to Note Participation Agreements
among
AAi.FOSTERGRANT, INC. and certain of its affiliates, the SNR Participants, BANK
OF AMERICA, N.A.(in its capacity as "Agent"), and BANK OF AMERICA, N.A. and the
other financial institutions which are parties to the Financing Agreement as
"Lenders"
NATIONAL CITY CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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